Reed v. Sell et al

Filing 56

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS' MOTION TO DISMISS 48 AND DEFENDANT OFFICER CLYDE'S MOTION FOR SUMMARY JUDGMENT 50 . The Court DENIES Sell and Masterful Des ign' motion to dismiss Counts One, Five, and Six, as well as Sell's motion to be dismissed in his individual capacity (Dkt. No. 48); DENIES AS MOOT Sell and Masterful Designs' motion to dismiss Counts Three and Four (Dkt. No. 48); GRANTS Sell and Masterful Designs' motion to dismiss Count Two (Dkt. No. 48); DENIES Officer Clyde's motion for summary judgment on Count One (Dkt. No. 50); DENIES AS MOOT Officer Clyde's motion for summary judgment on Counts Five and Six (Dkt. No. 50); and GRANTS Officer Clyde's motion for summary judgment on Counts Two, Three, and Four (Dkt. No. 50). The Court will set a further scheduling conference in this case by separate order. Signed by Senior Judge Irene M. Keeley on 10/13/2017. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARLENE K. REED,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV154
(Judge Keeley)

RICKEY SELL, SR.;
MASTERFUL DESIGNS, LLC; and
BRANDON CLYDE, individually
and in his official capacity;
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
The plaintiff, Marlene K. Reed (“Reed”), filed a second
amended complaint on November 21, 2016, in which she alleged that
the defendants had violated her constitutional rights and also were
liable for fraud and conversion (Dkt. No. 35). Now pending is the
motion to dismiss that complaint filed by the defendants, Rickey
Sell Sr. (“Sell”) and Masterful Designs, LLC (“Masterful Designs”)
(Dkt. No. 48). Also pending is the motion for summary judgment
filed by the defendant, Town of Barrackville Police Officer Brandon
Clyde (“Officer Clyde”) (Dkt. No. 50). For the reasons that follow,
the Court GRANTS in part and DENIES in part the motions.
I. BACKGROUND
A.

Factual Background
The Court’s recitation of the facts is taken from Reed’s

second amended complaint (Dkt. No. 35), which the Court construes

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
in the light most favorable to Reed. See De’Lonta v. Johnson, 708
F.3d 520, 524 (4th Cir. 2013). In 2008, Reed purchased a home in
Barrackville, West Virginia, with financing secured from First
Exchange Bank. At the time she purchased the home, Reed worked in
the food service industry. After suffering a stroke in July 2014,
she ultimately was forced to stop working in May 2015. While Reed
was hospitalized, her home was referred to foreclosure without her
knowledge. On June 26, 2015, the home was auctioned to Masterful
Designs at the Marion County Courthouse for the sum of $62,500.
In July 2015, Sell, the owner and operator of Masterful
Designs, set about taking possession of Reed’s home. On July 9,
2015, without filing an unlawful detainer action or giving Reed
notice of the transfer of property, he went to her home “and told
her he had closed on her house that day, and that she had to vacate
the premises.” He further advised Reed that she had “to vacate the
property within a few days” because his crew planned to begin
working on the house four days later.
The next day, July 10, 2015, Sell returned with several men,
who began going through Reed’s house and outbuilding. As Reed and
her

family

and

friends

were

packing

2

her

belongings,

Sell

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
continually harassed her to work faster and “told her that if she
was not out by the following day, he would have her arrested.”1
Later that evening, Officer Clyde arrived at the home and, after
conversing with Sell, told Reed that he would arrest her if she was
not off the property by the next day. This led Reed to believe that
Sell and Masterful Designs were acting lawfully, and that she would
be subject to arrest if she did not comply with Sell’s demands. In
addition, Sell changed the locks on Reed’s house despite telling
her that she would have until the next day to vacate the property.
Finally, on July 11, 2015, Sell returned to the house as Reed
frantically attempted to pack the remainder of her belongings. Sell
made this task more difficult by blocking the driveway and refusing
to permit Reed to remove a portable air conditioner she recently
had purchased. Thereafter, Sell made a phone call, and Officer
Clyde again arrived at the property to inform Reed that he would
arrest her if she was not gone by that night.

1

In her deposition taken during limited jurisdictional
discovery, Reed inconsistently testified both that Sell did and did
not threaten her with arrest (Dkt. No. 51-2 at 14). Due to the
sufficiency of Officer Clyde’s alleged actions, this factual
dispute does not affect the Court’s subject matter jurisdiction,
and it declines to consider the issue at this time.
3

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
Believing Officer Clyde’s threat of arrest to be genuine, Reed
left the house that evening, and, in the process, abandoned a
significant amount of personal property, including a love seat,
four televisions, dishes, clothing, two lawn mowers, and many items
of personal value. Because Reed was staying with her next door
neighbor, she was able to observe Sell and his wife search through
her personal property, “discarding some items and loading others
into their car.” She estimates that the value of this property
exceeds $12,000. Reed has remained homeless since being forced from
her house, and has had to store her belongings at a cost of $160
per month.
B.

Procedural Background
On July 14, 2016, Reed filed a complaint against Sell,

Masterful Designs, the Town of Barrackville, Police Officer William
Piggot (“Officer Piggot”), and Police Chief Chuck Wilson (“Chief
Wilson”), alleging violations of her federal constitutional rights
under 42 U.S.C. § 1983, violations of her civil rights under the
West Virginia Constitution, and state tort claims of fraud and
conversion (Dkt. No. 1).

4

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
At a scheduling conference held on October 25, 2016, the
parties expressed doubt about whether the defendant Officer Piggot
actually had been at Reed’s home during the dates in question.
Perceiving that the presence and involvement of state actors
presented a threshold question regarding its federal question
jurisdiction,

which

turns

on

the

viability

of

Reed’s

claims

pursuant to § 1983, the Court ordered a period of limited discovery
on the jurisdictional issue and extended the schedule for Reed’s
responses to the defendants’ then-pending motions to dismiss (Dkt.
No. 26).
Thereafter, on November 21, 2016, with leave of Court, Reed
filed a second amended complaint, substituting Officer Clyde for
Officer Piggot (Dkt. No. 35). Her claims are as follows: 1)
violation of civil rights under § 1983 and the Fourth Amendment, 2)
violation

of

civil

rights

under

§

1983

and

the

Fourteenth

Amendment, 3) violation of civil rights guaranteed by Article III,
§ 6, of the West Virginia Constitution, 4) violation of civil
rights guaranteed by Article III, §§ 10 and 17, of the West
Virginia Constitution, 5) fraud, and 6) conversion. Id. at 6-9. The
Town of Barrackville, Officer Clyde, and Chief Wilson all answered

5

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
the second amended complaint on December 23, 2016 (Dkt. No. 41),
but the parties later stipulated to the dismissal of the Town of
Barrackville and Chief Wilson on February 9, 2017 (Dkt. No. 44).
On February 10, 2017, in light of the filing of Reed’s second
amended complaint, the Court denied the pending motions to dismiss
as moot, and directed the defendants to file any further motions to
dismiss (Dkt. No. 45). On March 3, 2017, Sell and Masterful Designs
moved to dismiss the second amended complaint for failure to state
a

claim

(Dkt.

No.

48),

and

Officer

Clyde

moved

for

summary

judgment, claiming statutory immunity regarding Reed’s state law
claims, and that the second amended complaint failed to state a
claim against him (Dkt. No. 50).2 Both motions are fully briefed
and ripe for review.
2

Notably, the Court’s preliminary schedule in this case
encompassed only a brief period of jurisdictional discovery and the
defendants’ motions to dismiss. Officer Clyde, however, chose to
file a motion for summary judgment, perhaps because he chose to
answer Reed’s second amended complaint, rather than move to dismiss
based on his argument that the complaint fails to state a claim
upon which relief can be granted. Moreover, his motion for summary
judgment indiscriminately conflates an argument that Reed’s
complaint fails to state a claim with an argument that limited
jurisdictional discovery has established that there is no genuine
dispute of material fact. Given the early stage of these
proceedings and the Court’s clear direction, it will consider only
Officer Clyde’s argument that the second amended complaint fails to
state a claim.
6

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
II. STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(6) allows a defendant to move for
dismissal on the grounds that a complaint does not “state a claim
upon which relief can be granted.” When reviewing the sufficiency
of a complaint, a district court “must accept as true all of the
factual allegations contained in the complaint.” Anderson v. Sara
Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)). “While a complaint . . . does not
need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). A
court is “not bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
In order to be sufficient, “a complaint must contain ‘enough
facts to state a claim to relief that is plausible on its face.’”
Anderson, 508 F.3d at 188 n.7 (quoting Twombly, 550 U.S. at 547).
“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that

7

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not
resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses.” Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992).
III. DISCUSSION
A.

Federal Constitutional Claims
Reed alleges that the defendants deprived her of the right to

be free from unreasonable seizures and the right to receive
procedural due process (Dkt. No. 35 at 6-7). Because these claims
present a federal question and form the only possible basis for the
Court’s subject matter jurisdiction, the threshold issue is whether
Reed’s second amended complaint contains allegations sufficient to
state a claim under 42 U.S.C. § 1983 for the violation of her
Fourth or Fourteenth Amendment rights.
Section 1983 provides a cause of action against persons who,
under color of state law, deprive a citizen of “rights, privileges,
or immunities secured by the Constitution or laws.” “Section 1983
‘is not itself a source of substantive rights,’ but merely provides
a method for vindicating federal rights elsewhere conferred.”

8

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim for
relief under § 1983, Reed must allege both 1) that she was
“deprived of a right secured by the Constitution or laws of the
United States,” and 2) “that the alleged deprivation was committed
under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 49-50 (1999).
Because § 1983 imposes liability only for acts taken “under
color of state law,” Reed’s allegations against Sell and Masterful
Designs - both private parties - inject an inherent tension into
her federal claims. See Lugar v. Edmondson Oil Co., Inc., 457 U.S.
922, 930 (1982). The questions raised by these allegations include
whether Reed has stated a claim for deprivation of rights secured
by the Fourth and Fourteenth Amendments, and if so, whether the
defendants allegedly were acting under color of state law at the
relevant time.
1.

Deprivation of Constitutional Rights
a.

Fourth Amendment Rights

Count One of Reed’s complaint alleges that the defendants
violated her rights under the Fourth Amendment by unlawfully

9

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
seizing her real and personal property (Dkt. No. 35 at 6).3 Officer
Clyde argues that no Fourth Amendment violation occurred in this
case because he never handled Reed’s “personal property or seized
any item of property from her house” (Dkt. No. 51 at 17).4
The Fourth Amendment protects “the right of the people to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures.” U.S. Const. amend. IV. Whether
Reed has alleged a violation of her Fourth Amendment rights thus
depends on 1) whether her property was seized, and, if so, 2)
whether that seizure was unreasonable. See Altman v. City of High
Point, N.C., 330 F.3d 194, 200-05 (4th Cir. 2003).
First, all personal property constitutes an “effect” within
the meaning of the Fourth Amendment. See id. at 203. “A ‘seizure’

3

It is important to note that Reed does not allege an
unlawful search, nor that she experienced an unlawful seizure of
her person - as opposed to her property - when the defendants
threatened her arrest (Dkt. No. 53 at 11). Officer Clyde frequently
combines his argument concerning Reed’s actual claim with an
argument regarding searches of property and seizures of persons not
at issue in this case (Dkt. No. 51 at 12-16).
4

Sell and Masterful Designs seek dismissal of Reed’s federal
constitutional claims based solely on the fact that they are not
affiliated with the government (Dkt. No. 29 at 5-7). Whether the
defendants acted under color of state law is discussed later in
this memorandum opinion.
10

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
of property occurs when there is some meaningful interference with
an individual’s possessory interests in that property.” United
States v. Brown, 701 F.3d 120, 125 n.7 (4th Cir. 2012) (quoting
United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Permanent
deprivation of one’s personal property qualifies as meaningful
interference with a possessory interest. Altman, 330 F.3d at 205
(reasoning that killing a dog is a seizure because it is the
permanent deprivation of one’s effect).5
Here, Reed alleges that, on at least two occasions, Officer
Clyde came to her home and threatened to arrest her if she did not
vacate the property by July 11, 2015 (Dkt. No. 35 at 4-5). Due to
5

Although it clearly is possible to meaningfully interfere
with another’s possessory interest in real property, Presley v.
City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006), Reed’s
allegations regarding the sale of her home at foreclosure establish
that she no longer had a possessory interest in her home at the
time of the alleged seizure. Moreover, at the scheduling conference
on October 25, 2016, Reed conceded that a deed of sale had been
recorded and that the property had legally transferred to Masterful
Designs. Therefore, her argument that the defendants unlawfully
seized her real property is unavailing. Nor does the Supreme
Court’s decision in Soldal v. Cook County, on which Reed relies,
compel a contrary conclusion; that case dealt with dispossession of
a mobile home, which the plaintiffs indisputably owned, during the
course of an eviction from a trailer park. 506 U.S. 56, 61 (1992)
(“We fail to see how being unceremoniously dispossessed of one’s
home in the manner alleged to have occurred here can be viewed as
anything but a seizure invoking the protection of the Fourth
Amendment.”).
11

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
these threats, Reed believed that Sell’s actions were lawful and
she would be subject to arrest if she did not follow Sell and
Officer Clyde’s directions. Id. Thus, when Reed left her home for
the final time on July 11, 2015, she abandoned numerous items of
personal property that she did not have time to remove. Id. at 5.
Taking these allegations in the light most favorable to Reed,
De’Lonta, 708 F.3d at 524, she clearly contends that the defendants
permanently deprived her of valuable personal property by forcing
her to abandon it through the threat of arrest. Reed thus has
alleged the “seizure” of her “effects” within the meaning of the
Fourth Amendment. See Altman, 330 F.3d at 205.
The

second

question

is

whether

the

alleged

seizure

was

reasonable, as the Fourth Amendment only proscribes “unreasonable
searches and seizures,” and “[t]he ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’” Kentucky v. King, 563 U.S.
452, 459 (2011) (alteration in original) (quoting Brigham City v.
Stuart, 547 U.S. 398, 403 (2006)). “A seizure of personal property
conducted without a warrant is presumptively unreasonable.” Altman,
330 F.3d at 205 (citing United States v. Place, 462 U.S. 696, 701
(1983)).

12

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
To determine whether such a seizure is objectively reasonable,
however, “a court must ‘balance the nature and quality of the
intrusion on the individual’s Fourth Amendment interest against the
importance of the governmental interests alleged to justify the
intrusion.” Id. (quoting Place, 462 U.S. at 703). For instance, if
“officers [are] acting pursuant to a court order . . . a showing of
unreasonableness . . . would be a laborious task.” Soldal, 506 U.S.
at 71.
Here, the reasonableness balancing test weighs heavily in
favor of Reed. On the one hand, Reed allegedly has suffered the
permanent deprivation of at least $12,000 of personal property,
including a love seat, four televisions, dishes, clothing, two lawn
mowers, and many items of personal value. This is undoubtedly a
significant intrusion on her right to be free from such seizures
under the Fourth Amendment. On the other hand, the defendants have
not asserted any important governmental interest that encompasses
the alleged seizure, nor any reason that threats of arrest would
have been reasonable under the circumstances.
Threatening Reed with arrest if she did not leave the property
in

a

certain

amount

of

time

was

13

unnecessary

to

diffuse

the

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
situation confronting Officer Clyde.6 Taking Reed’s allegations as
true, the Court can discern no “split-second judgments” for which
Officer

Clyde

would

be

owed

deference

in

the

“calculus

of

reasonableness.” See Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Nor has Officer Clyde suggested that he was acting pursuant to a
court order, Soldal, 506 U.S. at 71, or that the seizure was
related to the exigencies of the circumstance, as may often be the
case during an investigation. See Place, 462 U.S. at 701-02.
Finding no governmental interest at stake in the permanent
deprivation of Reed’s personal property, the Court concludes that
her second amended complaint alleges a constitutionally proscribed
seizure of objectively unreasonable character. Therefore, Reed has
stated a claim for the violation of her Fourth Amendment rights.
b.
Count

Two

Fourteenth Amendment Rights
alleges

that

the

defendants

violated

Reed’s

Fourteenth Amendment right to procedural due process when they
failed to give her “reasonable notice prior to the seizure of her
real and personal property” (Dkt. No. 35 at 7). Officer Clyde
6

Nor is it clear that Officer Clyde had any authority to make
such a threat. During jurisdictional discovery, he testified that
the Marion County Sheriff’s Department, not municipal police
departments, handle evictions (Dkt. No. 51 at 6).
14

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
contends that Reed’s allegations fail to state a claim under the
Fourteenth Amendment because he did not deprive her of any right
guaranteed by the Constitution (Dkt. No. 51 at 19-21).
“Certain

wrongs

affect

more

than

a

single

right

and,

accordingly, can implicate more than one of the Constitution’s
commands.” Soldal, 506 U.S. at 70. In addition to her Fourth
Amendment claim, Reed may state a claim for the violation of her
procedural due process rights by alleging that “(1) [she] had
property or a property interest (2) of which the defendant deprived
[her] (3) without due process of law.” Sunrise Corp. of Myrtle
Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir. 2005).
Under established Supreme Court and Fourth Circuit precedent,
however, there can be no procedural due process claim pursuant to
§ 1983 when a defendant’s actions are random and not authorized by
the state, and the state “affords a meaningful post-deprivation
remedy.” Bogart v. Chapell, 396 F.3d 548, 561 (4th Cir. 2005). As
the Fourth Circuit aptly summarized in Bogart:
In its 1981 Parratt decision, the Supreme Court
considered whether an inmate at a Nebraska prison, who
ordered $23.50 worth of hobby materials by mail, could
sustain a § 1983 procedural due process claim for the
negligent loss of the materials by prison officials. The
Court was concerned with, inter alia, whether it was
15

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
practicable for the State to provide a predeprivation
hearing, and whether the postdeprivation tort remedies
provided by the State were constitutionally sufficient.
The Court concluded that the prisoner did not possess a
viable § 1983 claim because, in relevant part, “the
deprivation did not occur as a result of some established
state procedure” but rather “as a result of the
unauthorized failure of agents of the State to follow
established state procedure,” and because “the State of
Nebraska has provided respondent with the means by which
he can receive redress for the deprivation.” Of key
significance, the loss of the prisoner's property was the
“result of a random and unauthorized act by a state
employee.” The Court explained that, because the State
could not predict precisely when such a loss would occur,
the State could not be expected to provide a meaningful
predeprivation hearing.
The Court extended its Parratt holding, in its 1984
Hudson decision, to intentional deprivations of property.
The plaintiff in Hudson, an inmate at a Virginia prison,
alleged that a correctional officer had intentionally
destroyed some of the prisoner's noncontraband property
during a search of his cell. The lower courts, including
this Court, had concluded that the logic of Parratt
applied equally to unauthorized intentional deprivations
of property by state employees. The Supreme Court agreed,
explaining that “[t]he underlying rationale of Parratt is
that when deprivations of property are effected through
random and unauthorized conduct of a state employee,
predeprivation procedures are simply ‘impracticable’
since the state cannot know when such deprivations will
occur.” Thus, under the Parratt/Hudson doctrine, such a
deprivation “does not constitute a violation of the
procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation
remedy for the loss is available.”

16

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
Id. at 559-60 (internal citations omitted). The Parratt/Hudson
doctrine,

however,

does

not

apply

when

a

deprivation

is

foreseeable, pre-deprivation process could have been provided, and
the deprivation is accomplished at the hands of a state actor
vested with discretion to do so. Id. at 560 (citing Zinermon v.
Burch, 494 U.S. 113 (1990)).
The Fourth Circuit recently elucidated the Parratt/Hudson
doctrine in Bogart. There, the plaintiff housed over 200 cats and
dogs on her residential property in an effort to prevent their
euthanization by local shelters. Id. at 551. After receiving
complaints

from

local

veterinarians

regarding

the

number

and

condition of the animals, the co-chairman of the local humane
society asked the sheriff’s department to investigate. Id. at 55152. Ultimately, on November 17, 1999, law enforcement and animal
control officers executed a search warrant at the plaintiff’s home,
arrested her for ill treatment of animals, and seized 82 dogs and
129 cats. Id. at 552-53. Despite their duty under South Carolina
law to care for the animals pending the outcome of related civil or
criminal proceedings, the officers indiscriminately euthanized
“[a]ll but two of the dogs and some of the cats . . . by the

17

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
following morning,” when the plaintiff was released from custody
and arrived to claim the animals. Id.
The plaintiff filed suit, alleging, among other things, that
the various defendants had violated her procedural due process
rights without a pre-deprivation hearing. Id. at 553. The district
court applied the Parratt/Hudson doctrine and granted summary
judgment to the defendants. The Fourth Circuit affirmed, reasoning
that “[t]he doctrine controls the viability of [the plaintiff’s]
claim because the euthanization of [her] animals by the Defendants
was random and unauthorized, and because . . . South Carolina
affords

a

meaningful

post-deprivation

remedy.”

Id.

at

561.

Moreover, South Carolina could not have foreseen the defendants’
acts because they had no authority - discretionary or otherwise to euthanize the animals. Id.
Here, even assuming that the defendants deprived Reed of
protected interests without due process,7 her allegations establish
7

Although “property interests protected by procedural due
process extend well beyond actual ownership of real estate,
chattels, or money,” Board of Regents of State Colleges v. Roth,
408 U.S. 564, 571-72 (1972), it is far from clear that West
Virginia’s unlawful detainer procedures establish such a protected
interest when the plaintiff has no possessory interest in the real
property at issue. See generally Mills v. Cty. of Lapeer, No. 2:09cv-14026, 2011 WL 669389, at *12-*13 (E.D. Mich. Feb. 17, 2011)
18

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
no viable cause of action under the Fourteenth Amendment. Reed
alleges only that Sell and Masterful Designs failed to file an
unlawful detainer action or to give her notice that the property
had

been

transferred

(Dkt.

No.

35

at

3).

Consequently,

she

contends, they deprived her of real and personal property without
“reasonable notice.” Id. at 7.
The unlawful detainer procedure to which Reed refers can be
found at W. Va. Code § 55-3-1. See Tribeca Lending Corp. v.
McCormick, 745 S.E.2d 493, 496 & n.4 (W. Va. 2013). That section
provides for an action against unlawful occupants:
If any forcible or unlawful entry be made upon any land,
building, structure, or any part thereof, or if, when the
entry is lawful or peaceable, the tenant shall detain the
possession of any land, building, structure, or any part
thereof after his right has expired, without the consent
of him who is entitled to the possession, the party so
turned out of possession, no matter what right or title
he had thereto, or the party against whom such possession
is unlawfully detained, may, within three years after
such forcible or unlawful entry, or such unlawful
detainer, sue out of the clerk's office of the circuit
court, or of any court of record empowered to try
common-law actions, of the county in which the land,
building, structure, or some part thereof may be, a
summons against the defendant to answer the complaint of
the plaintiff that the defendant is in the possession of,
(reasoning that Michigan’s eviction procedures do “not create a
substantive property interest,” but merely embody “a state
procedural safeguard granted to those lacking such an interest”).
19

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
and unlawfully withholds from the plaintiff, the premises
in question (describing the same with convenient
certainty), to the damage of the plaintiff in such sum as
the plaintiff shall state; and no other declaration shall
be required.
W. Va. Code § 55-3-1.
The gravamen of Reed’s second amended complaint is not that
the state failed to provide sufficient process, but rather that the
defendants failed to utilize “the appropriate judicial process, or
otherwise provid[e] her with reasonable notice of the seizure”
(Dkt. No. 53 at 15-16) (emphasis added). Much like the defendants’
unauthorized euthanizations in Bogart, the defendants’ alleged
failure to abide by the appropriate procedures in this case can be
fairly characterized as a “random and unauthorized” departure from
their authority. Bogart, 396 F.3d at 563. “[I]t truly is impossible
for the state to provide predeprivation procedural due process
before a person unpredictably is deprived of [her] liberty or
property through the unauthorized conduct of a state actor.” Plumer
v. Maryland, 915 F.2d 927, 930 (4th Cir. 1990) (quoting Caine v.
Hardy, 905 F.2d 858, 862 (5th Cir. 1990)).
To

protect

departure,

West

against

such

Virginia

an

need

20

unauthorized
only

provide

and

unforeseen

“a

meaningful

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
postdeprivation remedy for the loss,” Bogart, 396 F.3d at 563, and
state-law tort actions fulfill this requirement. See, e.g., Hudson
v. Palmer, 468 U.S. 517, 531 n.11 (1984); Bogart, 396 F.3d at 556,
563. Indeed, West Virginia provides a common law cause of action
for conversion, see infra Part III.D, and municipal employees can
be held liable for tortious actions that are taken outside the
scope of their employment or with malicious or reckless intent. See
W. Va. Code § 29-12A-5(b); Hudson, 468 U.S. at 531 n.11 (noting
that postdeprivation procedures need not entitle the claimant to
“all

the

relief

to

which

he

might

have

been

entitled

under

§ 1983"). This satisfies the requirements of due process. Accord
Trump Tight, LLC v. Bell, 188 F. Supp. 3d 565, 574 (E.D. Va. 2016);
Tate v. Smith, No. 1:14cv125, 2017 WL 1843269, at *12 (M.D.N.C. May
5, 2017) (recommendation adopted in full by the district court).
“[W]here, as in this dispute, state employees do not have
broad authority (or, indeed, any authority) to deprive persons of
their property or liberty, and do not have a duty to provide the
procedural safeguards required before a deprivation occurs, the
Parratt/Hudson doctrine . . . bars a § 1983 procedural due process
claim based on the employees’ random and unauthorized conduct” when

21

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
“a meaningful postdeprivation remedy for the loss is available.”
Bogart, 396 F.3d at 563 (emphasis in original). Therefore, the
Court concludes that Reed has not alleged an actionable violation
of her Fourteenth Amendment right to procedural due process.
2.

Under Color of Law

Next, the Court must assess whether Reed’s Fourth Amendment
claim results from action allegedly taken under color of state law.
“In cases construing section 1983, ‘under color’ of law has been
treated

consistently

as

equivalent

to

the

‘state

action’

requirement under the Fourteenth Amendment.” Goldstein v. Chestnut
Ridge Volunteer Fire Co., 218 F.3d 337, 341 (4th Cir. 2000)
(quoting Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d
211, 215 (4th Cir. 1993)).
[S]tate action requires both an alleged constitutional
deprivation “caused by the exercise of some right or
privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is
responsible” and that “the party charged with the
deprivation must be a person who may fairly be said to be
a state actor.”
Am. Mfrs., 526 U.S. at 50.
Here, there can be little doubt - and the parties do not
appear to dispute - that Officer Clyde’s alleged actions were taken

22

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
under color of state law. Cf. Revene v. Charles Cty. Com’rs, 882
F.2d 870, 872 (4th Cir. 1989) (holding that even an off-duty
officer may act under color of state law depending on “the nature
of the act performed”); see also Robinson v. Prince George’s Cty.,
Md., No. PJM 09-181, 2011 WL 1743263, at *3 (D. Md. May 6, 2011)
(“Both parties implicitly accept that Jenkins, as a uniformed
police officer driving a police vehicle, was acting under color of
state law at the time of the incident.”). Indeed, “generally, a
public employee acts under color of state law while acting in his
official capacity or while exercising his responsibilities pursuant
to state law.” West v. Atkins, 487 U.S. 42, 50 (1988).
Whether Sell and Masterful Designs can be charged with “state
action” is a separate question, however. Critically,
to act “under color of” state law for § 1983 purposes
does not require that the defendant be an officer of the
State. It is enough that he is a willful participant in
joint action with the state or its agents. Private
persons, jointly engaged with state officials in a
challenged action, are acting . . . “under color” of law
for purposes of § 1983 actions.
Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). “[C]onduct allegedly
causing the deprivation of a federal right [must] be fairly
attributable to the State,” Lugar, 457 U.S. at 937, but “there is

23

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
no specific formula for defining state action.” Rossignol v.
Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Hicks v. S.
Md. Health Sys. Agency, 737 F.2d 399, 402 n.3 (4th Cir. 1984)).
“What is fairly attributable is a matter of normative judgment,”
and the Supreme Court has “identified a host of facts that can bear
on the fairness of such an attribution.” Brentwood Academy v. Tenn.
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001). For
instance, it has sanctioned the “public function” test, the “state
compulsion” test, the “nexus” test, and the “joint action” test.
Lugar, 457 U.S. at 939.
The Court’s approach to this “question begins by identifying
‘the specific conduct of which the plaintiff complains.’” Am.
Mfrs., 526 U.S. at 51 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004
(1982)). Reed alleges that Sell and Masterful Designs circumvented
the appropriate judicial process by carrying out an unlawful, selfhelp eviction. Critically, this eviction allegedly was accomplished
due in large part to threats of arrest by both Sell and Officer
Clyde in the event that Reed failed to vacate the property as
instructed (Dkt. No. 35 at 3-5). In fact, Reed alleges that she

24

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
credited Sell’s actions as lawful due to Officer Clyde’s presence
and statements. Id. at 4.
Courts have recognized that such affirmative participation by
law

enforcement

officers

in

allegedly

unlawful

evictions

can

suffice to give private conduct “the character of state action.”
Howerton v. Gabica, 708 F.2d 380, 384 (9th Cir. 1983); see also
Edmond v. Maher, No. DKC-07-2883, 2007 WL 5391046, at *3 (D. Md.
Nov. 13, 2007) (reasoning that using police to facilitate an
illegal repossession may constitute state action). In Howerton, the
plaintiffs were evicted from their trailer after falling behind on
rent. The landlord did not follow the state’s unlawful detainer
process, but instead asked a uniformed police officer to accompany
him

when

serving

a

notice

of

eviction

and

shutting

off

the

plaintiffs’ utilities. Howerton, 708 F.2d at 381.
The Ninth Circuit reasoned that, although “[a] single request
for the police to perform their peace-keeping functions may not be
sufficient to make a landlord a ‘joint actor’ with the state for
section 1983 purposes,” the eviction was “under color of state law”
because the landlords “repeatedly requested aid by the police to
effect the eviction, and the police intervened at every step.”

25

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
Id. at 385. This constitutes a “substantial degree of cooperation”
sufficient to establish “joint action” under § 1983. Franklin v.
Fox, 312 F.3d 423, 445 (9th Cir. 2002).
Construing Reed’s allegations in the light most favorable to
her, the Court is not convinced that she “can prove no set of facts
in support of [her] claim which would entitle [her] to relief”
against Sell and Masterful Designs. Presley, 464 F.3d at 488-89
(alteration in original) (quoting Conley, 355 U.S. at 45-46). Reed
does not allege that Officer Clyde merely exercised his peacekeeping function during the course of her expulsion from the
property, but rather that he arrived at the property on multiple
occasions during her eviction, spoke with Sell, and threatened her
with arrest if she did not leave within a certain time, a threat
Sell also had made (Dkt. No. 35 at 3-5). At this stage, Reed’s
allegations are subject to the reasonable inference that Sell,
Masterful Designs, and Officer Clyde were acting in concert to
effect the eviction, and thus that Sell and Masterful Designs acted
“under color of state law” by engaging in “joint action” with
Officer Clyde.

26

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
In

summary,

Reed’s

second

amended

complaint

alleges

the

deprivation of her Fourth Amendment rights, but she has no viable
claim under the Fourteenth Amendment due process clause. Because
the defendants allegedly cooperated to effect her expulsion, Reed
has stated a claim that the deprivation occurred under color of
state law such that the defendants may be subject to liability
under § 1983. The Court therefore DENIES the defendants’ motions
as to Count One - Reed’s Fourth Amendment claim - but GRANTS the
defendants’ motions as to Count Two - Reed’s Fourteenth Amendment
claim.
B.

State Constitutional Claims
In addition to her federal constitutional claims, Reed alleges

that Officer Clyde deprived her of the rights guaranteed by Article
III, Sections 6, 10, and 17 of the West Virginia Constitution (Dkt.
No. 35 at 6-8).8 Officer Clyde argues that these claims should be
dismissed because he is entitled to statutory immunity under West
Virginia law (Dkt. No. 51 at 9-11).

8

Although
complaint (Dkt.
does not assert
(Dkt. No. 52 at

not immediately apparent from the second amended
No. 35 at 6-8), Reed has since clarified that she
these claims against Sell and Masterful Designs
9).
27

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
Article III, Section 6 of the West Virginia Constitution
provides, in part, that “[t]he rights of the citizens to be secure
in their houses, persons, papers and effects, against unreasonable
searches and seizures shall not be violated.” Unless it is found to
be more protective of individual rights, see State v. Mullens, 650
S.E.2d

169,

188

(W.

Va.

2007),

the

provision

“is

generally

construed in harmony with the Fourth Amendment of the United States
Constitution.” Ullom v. Miller, 705 S.E.2d 111, 117 n.4 (W. Va.
2010). In addition, Article III, Section 10 provides that “[n]o
person shall be deprived of life, liberty, or property, without due
process of law, and the judgment of his peers.” This clause
“requires that whenever the government for itself or for litigants,
takes property from the possession of a person, a pre-seizure
hearing be held to determine whether the seizure is rightful,
except when such taking is a justifiable exercise of the police
power of the state.” Syl. Pt. 1, Tomchin Furniture Co. v. Lester,
309 S.E.2d 73 (W. Va. 1983) (quoting Syl. Pt. 1, State ex rel.
Yanero v. Fox, 256 S.E.2d 751 (W. Va. 1979)).
Although

Officer

Clyde’s

conduct

is

governed

by

these

provisions, he also is clearly entitled to immunity from Reed’s

28

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
related claims. In West Virginia, the Governmental Tort Claims and
Insurance Reform Act “provide[s] immunity to political subdivisions
in

certain

instances.”

W.

Va.

Code

§

29-12A-1.

Political

subdivisions are defined to include municipalities, which “means
any incorporated city, town or village and all institutions,
agencies or instrumentalities of a municipality.” § 29-12A-3(b),
(c). An “employee” is one “who is authorized to act and is acting
within

the

scope

subdivision.”

§

of

his

or

29-12A-3(a).

her

employment

Critically,

for

“[a]n

a

political

employee

of

a

political subdivision is immune from liability unless one of the
following applies: (1) His or her acts or omissions were manifestly
outside the scope of employment or official responsibilities; (2)
His or her acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner; or (3) Liability is
expressly imposed upon the employee by a provision of this code.”
§ 29-12A-5(b).
Public officials thus are entitled to statutory immunity
“unless it is shown by specific allegations that the immunity does
not apply.” Hutchison v. City of Huntington, 479 S.E.2d 649, 657-58
(W. Va. 1996). When a plaintiff’s complaint is bereft of specific

29

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
allegations regarding an exception to statutory immunity, a public
official is entitled to the dismissal of state law claims against
him. See Osborne v. Cty. Comm’n of Kanawha Cty., No. 2:02-1250,
2003 WL 24272906, at *7-*9 (S.D.W.Va. Sept. 29, 2003), aff’d in
part, vacated in part on other grounds, 143 F. App’x 554 (4th Cir.
2005); see also McCormick v. Walmart Stores, 600 S.E.2d 576, 583
(W. Va. 2004) (Maynard, C.J., dissenting) (noting the heightened
pleading standard when immunity defenses are implicated by a
plaintiffs’ allegations). “[P]laintiffs’ failure to allege specific
exceptions under 29-12A-5(b) will result in the summary disposition
of plaintiffs’ claims.” Douglas Holding Co. v. City of Princeton,
No. 1:14-14200, 2016 WL 6909120, *4 (S.D.W.Va. Mar. 31, 2016)
(quoting Burch v. Moore, No. 5:05-cv-00831, 2007 WL 760527, *9
(S.D.W.Va. Mar. 8, 2007)).
Here, there is no dispute that Officer Clyde was an employee
of the Town of Barrackville, a West Virginia municipality, “acting
within the scope of his employment with respect to all acts alleged
in the Second Amended Complaint” (Dkt. Nos. 35 at 2; 53 at 8).
Although Reed contends that limited jurisdictional discovery has
revealed evidence from which a jury could infer that Officer Clyde

30

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
was acting with malicious purpose, in bad faith, or in a wanton or
reckless manner (Dkt. No. 53 at 9), her second amended complaint
simply does not contain any “specific allegations” of such conduct
(Dkt. No. 45). Therefore, because Reed has not alleged that Officer
Clyde’s actions fall within the enumerated exceptions to West
Virginia’s broad statutory immunity for public officials, the Court
GRANTS his motion for summary judgment with regard to Counts Three
and Four.
C.

Fraud
In Count Five, Reed alleges that Sell and Masterful Designs

are

liable

for

fraud

because

she

relied

on

their

material

misrepresentations that she would be subject to arrest (Dkt. No. 35
at 8-9).9 “The essential elements in an action for fraud are: (1)
that the act claimed to be fraudulent was the act of the defendant
or induced by him; (2) that it was material and false; [(3)] that
plaintiff relied on it and was justified under the circumstances in
relying upon it; and [(4)] that he was damaged because he relied on

9

Although not plain from the second amended complaint, which
refers to fraud and conversion by “Defendants” (Dkt. No. 35 at 9),
Reed has since clarified that her fraud and conversion claims do
not run against Officer Clyde (Dkt. No. 53 at 17).
31

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
it.” Syl. Pt. 5, Folio v. City of Clarksburg, 655 S.E.2d 143 (W.
Va. 2007) (internal quotation and citation omitted).
Further, Fed. R. Civ. P. 9(b) provides that, “[i]n alleging
fraud or mistake, a party must state with particularity the
circumstances

constituting

fraud

or

mistake.

Malice,

intent,

knowledge, and other conditions of a person’s mind may be alleged
generally.”

The

Fourth

Circuit

has

explained

that

“the

‘circumstances’ required to be pled with particularity under Rule
9(b)

are

‘the

time,

place,

and

contents

of

the

false

representations, as well as the identity of the person making the
misrepresentation and what he obtained thereby.’” Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 782 (4th Cir. 1999).
In support of their argument that Reed failed to state a claim
for fraud with the requisite particularity, Sell and Masterful
Designs rely principally on this Court’s decision in Kerns v. Range
Resources-Appalachia, LLC, No. 1:10cv23, 2011 WL 197908 (N.D.W.Va.
Jan. 18, 2011). In Kerns, the plaintiffs alleged that the defendant
“made fraudulent misrepresentations to them regarding the work it
intended to perform as well as the work that it ‘actually performed
under the terms of the parties’ contract.’” Id. at *6. But the

32

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
plaintiffs simply listed the elements of a fraud claim without
providing any factual support “about when these representations
were made, where they were made, or who made them.” Id.
Here, Reed has sufficiently alleged a claim for fraud under
West Virginia law; as well she has satisfied the heightened
pleading standard under the Federal Rules. She alleges that, on
July 10, 2015, Sell - and thus Masterful Designs - misrepresented
that she would be arrested if she did not vacate her home by July
11,

2015

(Dkt.

No.

35

at

4-5).

Given

the

presence

of

law

enforcement, she reasonably relied on Sell’s statement, believing
she would be subject to arrest if she did not leave the property as
he demanded. Id. at 4, 9. As a result, Reed avers that she was
damaged when she was forced to leave behind numerous items of
personal property. Id. at 5. Therefore, the Court DENIES Sell and
Masterful Designs’ motion to dismiss Count Five.
D.

Conversion
In Count Six, Reed alleges that Sell and Masterful Designs

wrongfully converted her personally property between July 9 and
July 11, 2015 (Dkt. No. 35 at 9). “[A] civil action for conversion”
allows recovery for “the exercise of dominion over the personal

33

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
property of another by a person who has no legal right to do so.”
More particularly,
[a]ny distinct act of dominion wrongfully exerted over
the property of another, and in denial of his rights, or
inconsistent therewith, may be treated as a conversion
and it is not necessary that the wrongdoer apply the
property to his own use. And when such conversion is
proved the plaintiff is entitled to recover irrespective
of good or bad faith, care or negligence, knowledge or
ignorance.
Syl. Pt. 17, Rodgers v. Rodgers, 399 S.E.2d 664 (W. Va. 1990)
(quoting Syl. Pt. 3, Pine & Cypress Mfg. Co. v. Am. Eng’g &
Construction Co., 125 S.E. 375 (W. Va. 1924)).
The defendant’s state of mind is irrelevant, id. at 677, but
“[c]ritical to any claim for conversion . . . is ‘title or right of
possession.’” Gaddy Eng’g Co. v. Bowles Rice McDavid Graff & Love,
LLP, 746 S.E.2d 568, 579 (W. Va. 2013) (quoting Thompson Dev., Inc.
v. Kroger Co., 413 S.E.2d 137, 142 (W. Va. 1991)). Moreover, “[i]t
has been generally recognized that where one assents to, or
ratifies, another’s taking of his personal property, conversion
does not occur.” Henry v. Wilson Ford, Inc., 399 S.E.2d 871, 875
(W. Va. 1990).
Here, the parties do not dispute that Reed had the right to
possess personal property that she abandoned at her former home.
34

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
Reed has sufficiently alleged that Sell and Masterful Designs
converted her personal property because she claims they exerted
dominion over it only by unlawfully evicting her from the premises.
Therefore, the Court DENIES Sell and Masterful Designs’ motion to
dismiss Count Six.
E.

Defendant Sell
As a final matter, Sell argues - without citing any legal

authority - that he should be dismissed from this lawsuit in his
individual capacity because he “would have been acting in his
capacity as owner and operator of the limited liability company,”
Masterful Designs (Dkt. No. 49 at 4). On the other hand, although
Reed does not dispute that Sell was acting in his capacity for
Masterful Designs, she argues that it may be appropriate, following
discovery, to “pierce the veil” of Masterful Designs and hold Sell
personally liable for her injuries (Dkt. No. 52 at 6-17).
Under West Virginia law,
To pierce the veil of a limited liability company in
order to impose personal liability on its member(s) or
manager(s), it must be established that (1) there exists
such unity of interest and ownership that the separate
personalities of the business and of the individual
member(s) or managers(s) no longer exist and (2) fraud,
injustice, or an inequitable result would occur if the

35

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
veil is not pierced. This is a fact driven analysis that
must be applied on a case-by-case basis . . . .
Syl. Pt. 7, Kubican v. The Tavern, LLC, 752 S.E.2d 299 (W. Va.
2013) (relying, in part, on the standard for piercing the corporate
veil). Piercing the veil of a limited liability company is an
equitable remedy, not a cause of action. Id. at Syl. Pt. 5; Laya v.
Erin Homes, Inc., 352 S.E.2d 93, 98 (W. Va. 1986).
Although Reed “bears the burden of demonstrating the required
factors for piercing the veil” of Masterful Designs, Myers v.
DuBrueler, No. 3:15-CV-56, 2016 WL 3162063, at *3 (N.D.W.Va. June
3, 2016) (dismissing a claim against an LLC member “[b]ecause the
Plaintiff ha[d] failed to plead any facts in relation to piercing
the LLC veil”), at the motion to dismiss stage, the plaintiff’s
burden to state a facially plausible claim is a light one. Tobia v.
Loveland, No. 5:16CV187, 2017 WL 2113752, at *2 (N.D.W.Va. May 15,
2017)

(finding

sufficient

an

allegation

that

the

defendant

“personally benefitted from the employment of [the plaintiff] under
false pretenses”). Here, Reed names Sell as the organizer, owner,
and operator of Masterful Designs, and alleges actions he undertook
with regard to Masterful Designs’ acquisition of her home at
foreclosure (Dkt. No. 35 at 2-3). Tellingly, she also alleges that
36

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
Sell and his wife - who has no apparent connection to Masterful
Designs aside from her marriage to Sell - “went through her
personal property, discarding some items and loading others into
their car.” Id. at 5. From these allegations, it is facially
plausible that Sell should be held liable “on grounds that are not
based solely on [his] status as a member or manager of” Masterful
Designs. Kubican, 752 S.E.2d at 306. Therefore, the Court DENIES
Sell’s motion to be dismissed in his individual capacity.
IV. CONCLUSION
For the reasons discussed, the Court:
•

DENIES Sell and Masterful Designs’ motion to dismiss
Counts One, Five, and Six, as well as Sell’s motion to be
dismissed in his individual capacity (Dkt. No. 48);

•

DENIES AS MOOT Sell and Masterful Designs’ motion to
dismiss Counts Three and Four (Dkt. No. 48);

•

GRANTS Sell and Masterful Designs’ motion to dismiss
Count Two (Dkt. No. 48);

•

DENIES Officer Clyde’s motion for summary judgment on
Count One (Dkt. No. 50);

37

REED V. SELL, ET AL.

1:16cv154

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS SELL AND MASTERFUL DESIGNS’
MOTION TO DISMISS [DKT. NO. 48] AND DEFENDANT OFFICER
CLYDE’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 50]
•

DENIES

AS

MOOT

Officer

Clyde’s

motion

for

summary

judgment on Counts Five and Six (Dkt. No. 50); and
•

GRANTS Officer Clyde’s motion for summary judgment on
Counts Two, Three, and Four (Dkt. No. 50).

The Court will set a further scheduling conference in this
case by separate order.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: October 13, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

38